Defoor

The defendant was found guilty by a jury, and sentenced by the court to seven years imprisonment in the state prison, upon an information, for mayhem, committed upon one W. R. Jones on the nineteenth day of December, 1891.

The defendant pleaded not guilty, and also pleaded that he had once been in jeopardy for the offense charged, and also a further plea that he had been convicted of the offense charged upon judgment of the superior court of the same county of Calaveras.

The appeal is from the judgment and from an order denying his motion for a new trial. The bill of exceptions shows that on the nineteenth day of December, 1891, the complaining witness, Jones, was seated in Raggio’s store; that the defendant came in and, after addressing some abusive language to Jones, struck him upon the head with a whisky glass; that Jones got up, whereupon the two men seized each other, and in the struggle *152 that followed fell upon the floor, each striking the other as opportunity offered, and that during the struggle Jones was bitten upon the thumb by the defendant.

The fight lasted about a minute and a half or two minutes, when the parties were separated by others who were present. The…